STF holds judgment for 16 months, and Flávio Bolsonaro accumulates victories in the STJ – 11/20/2021 – Power

The STF (Supreme Federal Court) has been holding the judgment for more than 16 months that can unlock the investigation against senator Flávio Bolsonaro (Patriota-RJ) in the second instance or send it back to first-degree judge Flávio Itabaiana.

While a decision on the case is postponed, the Supreme Court has left the way open for the STJ (Superior Court of Justice) to impose serial defeats on the investigations into the case of “cracks” in the congressman’s office at the time he was state deputy.

The last one was the most extensive: by 4-1, the ministers of the Fifth Panel of the second most important court in the country annulled all the decisions that the Justice of Rio de Janeiro had already taken and that allowed the production of elements used by the Public Ministry to denounce President Jair Bolsonaro’s son on charges of leading a criminal organization.

The lawsuit that deals with the issue reached the STF in June 2020 and had a judgment scheduled in the Second Panel on two occasions, but was withdrawn from the agenda at the defense’s request.

The definition of the day to analyze the case depends on the president of the group, Minister Kassio Nunes Marques, appointed by the Chief Executive to the Supreme Court, and the rapporteur, Gilmar Mendes.

While the process is stalled at the Supreme Court, the investigation continues in the second instance, but investigators report in private conversations insecurity in moving forward in the investigations due to the absence of a final word from the STF on which is the competent court to conduct the case.

The controversy reached the court after the 3rd Criminal Chamber of the TJ-RJ (Tribunal de Justiça of Rio de Janeiro) removed the investigation from the hands of Itabaiana, who had been giving tough decisions, as occurred in the arrest decree of Fabrício Queiroz, accused of being the operator of the salary collection scheme for civil servants in Flávio’s office, at the time state deputy.

By 2 votes to 1, the judges stated that, as he had changed his mandate from deputy to senator, he should not lose the prerogative of being judged directly by a second instance collegiate body, and not by just one judge.

The MP-RJ (Rio de Janeiro Public Ministry) then appealed to the STF on the grounds that the decision violated the court’s jurisprudence to restrict the special forum of politicians.

The current understanding of the Supreme determines that the forum only exists for crimes committed during the mandate and that are connected with the function.

As Flávio is no longer in the position in which he would have committed the crimes, the alleged crimes should be investigated in the first degree, according to the Public Ministry.

In response to the action presented by the investigators to the Supreme Court, even the TJ-RJ acknowledged that the decision may have been unprecedented, but considered that it was not absurd.

The STF has to decide whether to change the jurisprudence for the so-called cross mandates. The thesis of Flávio’s lawyers is that the forum has to be expanded to cases in which the politician changes one position for another, instead of sending to the first degree crimes committed by politicians in terms prior to the one he currently holds.

Minister Kassio Nunes Marques, for example, has already indicated that he is in favor of this change.

In the broader defeat imposed on investigations by the STJ, on the 9th of this month, the court changed its position in relation to March of the same year to adhere to the defense’s thesis.

In March, the Fifth Panel of the court had rejected the senator’s arguments, upholding Itabaiana’s decisions that allowed the production of elements used by the MP-RJ to denounce the president’s son.

To justify the turnaround, the ministers referred to a Supreme Court judgment in May 2021, when the country’s highest court magistrates signed an understanding that the original criminal competence to judge federal congressmen must be maintained when the politician changes a mandate in the Chamber on the other in the Senate or vice versa.

It so happens that the STF decision did not cover Flávio’s situation, since he left the Legislative Assembly of RJ for Congress.

Ministers Reynaldo Soares da Fonseca and Ribeiro Dantas, however, changed their position in relation to March to align themselves with João Otávio de Noronha and declare Itabaiana’s incompetence and the nullity of all the evidence that had been collected with his authorization.

In February, the STJ had already annulled Flávio’s breaches of bank and tax secrecy. At the time, by majority vote, the Fifth Panel identified problems of reasoning in the court decision.

Until this month’s judgment, the MP-RJ was still looking for legal solutions to preserve the evidence obtained in the search and seizure carried out in December 2019. Now, however, investigators are unlikely to succeed in this mission.

Another decision by the STJ in favor of the senator had been taken in August, when Noronha ordered the suspension of the second instance investigation against Flávio, Queiroz and 15 other investigated.

Before that, the same minister had been responsible for releasing Queiroz a few weeks after he was arrested by order of Itabaiana.

After 16 months of the process in the Supreme Court, Flávio’s defense now asks that the lawsuit on the subject be dismissed.

Lawyers Rodrigo Roca and Luciana Pires argued that the controversy ceased to exist because the Prosecutor’s Office itself recognized that the attribution belongs to the Attorney General, who acts in the second instance.

The question was raised internally in the MP-RJ due to another investigation involving Flávio. Based on an unpublished report by Coaf, suspicions in the transaction of assets from people related to the president’s eldest son are analyzed.

Prosecutor Alexandre Murilo Graça, who raised the question about the competence to conduct the case, cited conflicting court decisions on the subject.

He demanded a solution from the STF: “The Federal Supreme Court itself needs to establish valid norms for when the alleged crime investigated concerns the previous mandate and the politician who changed public function still has the right to the jurisdiction of that old position (or starts to have jurisdiction of the new post)”.

For the senator’s defense, the recognition by the Public Prosecutor’s Office of the Attorney-General of Justice’s attribution to investigate and act on the facts involving the parliamentarian emptied the object of the process in progress in the Supreme Court.

“It is imperative to recognize that the aforementioned declaration of competence of the Attorney General’s Office resulted, logically and automatically, in the withdrawal of the action, as it is not appropriate for the Ministerial Body, now, to recognize that the senator has the prerogative of function as to a fact and the decline of competence of the complaint to the lower court persists in relation to another fact.”

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